[This opinion has been published in Ohio Official Reports at
85 Ohio St.3d 363.]
THE STATE OF OHIO, APPELLEE, v. GILLARD, APPELLANT.
[Cite as State v. Gillard, 1999-Ohio-385.]
Appellate procedure—Application for reopening appeal from judgment and
conviction based on claim of ineffective assistance of appellate counsel—
Application denied when performance of appellate counsel was not
deficient.
(No. 98-1157—Submitted December 15, 1998—Decided April 28, 1999.)
APPEAL from the Court of Appeals for Stark County, No. CA-6701.
__________________
{¶ 1} Appellant, John Grant Gillard, was convicted of aggravated murder
and sentenced to death. In 1987, the Court of Appeals for Stark County reversed
his conviction and sentence. State v. Gillard (Jan. 21, 1987), Stark App. No. CA-
6701, unreported, 1987 WL 5768. The state sought and obtained this court’s leave
to appeal. Also by leave of court, Gillard cross-appealed on two assignments of
error that the court of appeals had overruled. We sustained the state’s six
propositions of law, overruled Gillard’s two propositions on cross-appeal, reversed
the court of appeals’ judgment, and remanded to that court for independent review
of the death sentence. State v. Gillard (1988),
40 Ohio St.3d 226,
533 N.E.2d 272
(Gillard I).
{¶ 2} On remand, the court of appeals affirmed the death sentence. State v.
Gillard (June 25, 1990), Stark App. No. CA-6701, unreported, 1990 WL 94632.
Gillard appealed that judgment to this court. In the process, he added a number of
new claims, one of which involved a claimed conflict of interest on the part of his
trial counsel. We remanded to the Stark County Court of Common Pleas with
instructions to determine whether or not a conflict existed, hold a new trial if it
SUPREME COURT OF OHIO
found a conflict, and return the cause to this court if not. State v. Gillard (1992),
64 Ohio St.3d 304,
595 N.E.2d 878 (Gillard II).
{¶ 3} The trial court found that no conflict existed and returned the cause to
this court. We affirmed the trial court’s finding. State v. Gillard (1997), 78 Ohio
St.3d 548, 550-555,
679 N.E.2d 276, 280-283 (Gillard III). We also conducted our
independent review, R.C. 2929.05(A), and affirmed Gillard’s death sentence.
Id.,78 Ohio St.3d at 555-558,
679 N.E.2d at 283-285. In that proceeding, Gillard again
tried to raise new issues, which we declined to consider because they were beyond
the scope of our remand and also because they were res judicata, Gillard having
failed to raise them in his 1988 cross-appeal to this court.
78 Ohio St.3d at 550,
679 N.E.2d at 279-280.
{¶ 4} On July 7, 1997, Gillard filed in the court of appeals an application to
reopen his direct appeal under App.R. 26(B). He alleged that his appellate counsel
had rendered ineffective assistance before the court of appeals by failing to raise
certain issues during his 1987 appeal to that court. When the state failed to respond,
the court of appeals granted the application, thereby reinstating Gillard’s direct
appeal. On the reinstated appeal, the court of appeals reaffirmed the judgment of
the common pleas court. State v. Gillard (Apr. 27, 1998), Stark App. No. CA-6701,
unreported. From the court of appeals’ judgment, Gillard appeals as of right.
__________________
Robert D. Horowitz, Stark County Prosecuting Attorney, and Ronald Mark
Caldwell, Chief, Appellate Division, for appellee.
David H. Bodiker, Ohio Public Defender, Jennifer P. Hite and Laurence E.
Komp, Assistant Public Defenders, for appellant.
__________________
2
January Term, 1999
Per Curiam.
{¶ 5} Gillard is not entitled to relief under App.R. 26(B). A prerequisite for
such relief is a finding that “the performance of appellate counsel was deficient and
the applicant was prejudiced by that deficiency.” App.R. 26(B)(9).
{¶ 6} Gillard was not denied the effective assistance of counsel on his first
appeal as of right—i.e., his direct appeal to the court of appeals in 1987.1 His
counsel won the appeal for him. We cannot see how the assistance of counsel could
have been more effective than that.
{¶ 7} Moreover, assuming that Gillard had a viable ineffective-assistance
claim against his appellate counsel, he should have raised any such claim in his
1988 cross-appeal to this court. See Gillard III, 78 Ohio St.3d at 549,
679 N.E.2d
at 279. In that proceeding, Gillard was represented by different counsel. Hence,
there was no obstacle to his presenting to us any ineffective-assistance claim he
may have had.2 Cf. State v. Lentz (1994),
70 Ohio St.3d 527, 529-530,
639 N.E.2d
784, 785-786 (counsel cannot be expected to argue his own ineffectiveness).
{¶ 8} The judgment of the court of appeals is therefore affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________
1. As we held in Gillard III, 78 Ohio St.3d at 550,
679 N.E.2d at 279-280, Gillard’s counsel did not
render ineffective assistance by failing to raise new issues in the court of appeals’ 1990 proceedings
on remand from Gillard I, as such issues were beyond the scope of the remand.
2. Jack A. Blakeslee represented Gillard before the court of appeals in 1987. After the state obtained
leave to appeal, we granted Blakeslee’s motion to withdraw. We then appointed John N. Mackey
and Kathleen O. Tatarsky to represent Gillard in this court. Five months after Blakeslee withdrew,
Mackey and Tatarsky filed Gillard’s delayed cross-appeal. Gillard’s merit brief on cross-appeal was
signed by Mackey and Tatarsky and filed nearly eight months after Blakeslee withdrew.
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